Com. v. Alleyne, L.

J-S57012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
LAEL J. ALLEYNE :
: No. 236 EDA 2017
Appellant
Appeal from the Judgment of Sentence December 8, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001098-2015
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 27, 2017
Appellant, Lael J. Alleyne, appeals from the judgment of sentence
entered in the Northampton County Court of Common Pleas, following his
conviction for first-degree murder and related offenses. After careful review,
we reverse one of Appellant’s convictions for conspiracy to commit robbery
and its sentence, but affirm the judgment of sentence in all other respects.
The relevant facts and procedural history are as follows. Appellant was
sixteen on the day he committed these crimes. Along with Charles David
Martin III, he devised a plan to purchase marijuana from Nichelson Raymond
and Richard Piscoya. In fact, Appellant and Martin planned to rob Raymond
and Piscoya. Appellant used Monserrat Rosas, a mutual friend of his and
Piscoya’s, to arrange the drug buy.
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On the day of the sale, Rosas approached the vehicle in which Raymond
and Piscoya sat, and got into the backseat in order to conduct the drug sale.
Appellant and Martin then approached the vehicle. Appellant opened the front
passenger side door of the car, pointed a gun at the vehicle’s occupants, and
demanded that they give him the marijuana. In an effort to escape, Raymond
threw the car into reverse and the vehicle rolled backward. Appellant fired
several shots into the car, which struck and killed Raymond. Appellant and
Martin fled the scene.
Appellant was arrested and proceeded to a jury trial with Martin.
Appellant was convicted of first-degree murder, two counts of robbery, two
counts of conspiracy, and one count each of possession of an instrument of
crime and possession of a firearm by a minor.1 The court sentenced Appellant
to an aggregate term of forty-eight years to life imprisonment. Appellant
timely appealed.
On appeal, Appellant challenges the sufficiency of the evidence
presented against him, the jury instructions used at trial, and the admission
of two autopsy photographs into evidence. We begin by evaluating Appellant’s
sufficiency argument.
To preserve a sufficiency issue on appeal, an appellant’s Rule 1925(b)
statement “must specify the element or elements upon which the evidence
was insufficient.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super.
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1
18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), (ii), 903, 907(a), and 6110.1(a),
respectively.
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2009) (citations omitted). “Such specificity is of particular importance in cases
where … the [a]ppellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must prove beyond a
reasonable doubt.” Id. (citation omitted).
Here, Appellant raised the issue of sufficiency in his Rule 1925(b)
statement. But he failed to specify with any particularity which elements of
each of the seven crimes he desired to challenge. Instead, Appellant merely
named all seven of his crimes and baldly stated the evidence was insufficient
to support his convictions.
Despite this, our Supreme Court has previously held that this Court may
afford sufficiency review in certain cases even where an appellant fails to
preserve his specific sufficiency contention, provided the issue is “relatively
straightforward.” Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa.
2007).
In this specific instance, we find it appropriate to overlook Appellant’s
lack of specificity. The Commonwealth concedes Appellant’s sufficiency
challenge to his second conspiracy conviction (the focus of Appellant’s
appellate brief) is meritorious and deserving of relief. See Commonwealth’s
Brief, at 12. Thus, we will review the merits of this conviction.
A challenge to whether an appellant engaged in one conspiracy or
multiple conspiracies depends on a factual finding, and is thus a challenge to
the sufficiency of the evidence. See Commonwealth v. Andrews, 768 A.2d
309, 313-314 (Pa. 2001) (holding that a challenge to whether an appellant’s
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criminal conduct amounted to one conspiracy or more is a fact-driven inquiry
and constitutes a sufficiency claim, rather than a non-waivable illegality of the
sentence issue).
To prove criminal conspiracy, the Commonwealth must show that an
appellant “1) entered into an agreement to commit or aid in an unlawful act
with another person or persons; 2) with a shared criminal intent; and 3) an
overt act was done in furtherance of the conspiracy.” Commonwealth v.
Mitchell, 135 A.3d 1097, 1102 (Pa. Super. 2016) (citation omitted). “If a
person conspires to commit a number of crimes, he is guilty of only one
conspiracy so long as multiple crimes are the object of the same agreement
or continuous conspiratorial relationship.” 18 Pa.C.S.A. § 903(c).
The jury found Appellant guilty of conspiracy to commit robbery of
Nichelson Raymond and conspiracy to commit robbery of Richard Piscoya. At
trial, the Commonwealth presented testimony from Monserrat Rosas, the
woman Appellant used to arrange the drug purchase. Rosas explained
Appellant asked her to set up a fake drug sale with Raymond and Piscoya,
with the stated intention of robbing the men. Rosas stated that she told
Appellant she did not wish to rob Piscoya or participate in the scheme.
Appellant then told her he would instead supply her with cash, which she
would use to purchase the marijuana. Rosas testified that, on the day of the
sale, she proceeded to Piscoya’s car to make the drug transaction. She said
she was shocked when Appellant and Martin followed her to the car. Rosas
stated that Appellant then pointed a gun into the car and told Raymond and
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Piscoya that he and Martin wanted the drugs. At this point, Rosas jumped out
of the car and ran away.
Based on that, the Commonwealth presented evidence Appellant and
Martin formulated a plan to rob Raymond and Piscoya of their drugs. However,
as noted above, multiple crimes may be the result of a single conspiracy, so
long as those crimes are the object of the same agreement. The evidence
offered indicates the existence of a single agreement, to rob the victims and
steal their drugs. The fact this crime victimized two persons rather than one
does not create an additional conspiracy, in the absence of a second, separate
criminal agreement. The Commonwealth concedes this very point, agreeing
the judgment of sentence for the conspiracy to commit robbery of Piscoya
should be reversed. See Commonwealth’s Brief, at 12 (“The Commonwealth
concedes that, based on the facts of this case, Appellant is correct.”) Appellant
is entitled to relief on this claim.
However, his sentence for that conviction is concurrent with his
sentences for his other crimes, and our disposition does not affect Appellant’s
aggregate sentence. In cases where our decision does not alter the overall
sentencing scheme, remand is unnecessary. See Commonwealth v. Thur,
906 A.2d 552, 569 (Pa. Super. 2006). Thus, we reverse Appellant’s second
conspiracy conviction, but decline to remand.
In his second claim, Appellant argues the trial court erred in refusing to
instruct the jury on voluntary manslaughter. In Appellant’s view, Raymond
made a swift motion to shift the car into reverse and try to escape from
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Appellant. Appellant asserts he may have reasonably believed Raymond was
reaching for a gun. He supports this argument by indicating that Raymond
had a gun on his person at the time of his death.
“Our standard of review when considering the denial of jury instructions
is one of deference – an appellate court will reverse a court’s decision only
when it abused its discretion or committed an error of law.” Commonwealth
v. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation omitted).
[A] voluntary manslaughter instruction is warranted only where
the offense is at issue and the evidence would support such a
verdict. To support a verdict for voluntary manslaughter, the
evidence would have had to demonstrate that, at the time of the
killing, [a]ppellant acted under a sudden and intense passion
resulting from serious provocation by the victim.
Commonwealth v. Sanchez, 82 A.3d 943, 979 (Pa. 2013) (brackets in
original; citation omitted). And no jury charge is required on voluntary
manslaughter where the defendant denies committing the killing. See id., at
980.
That is the situation here. Appellant denied culpability at trial. Far from
establishing the applicability of voluntary manslaughter to the evidence,
Appellant continues to maintain in his appellate brief that he is not guilty of
killing Raymond. Appellant’s argument the trial court erred in not supplying
the voluntary manslaughter instruction instead appears to concede that if
Appellant did commit the murder, it was justified by Raymond’s swift
movement toward the car’s gear shift. Appellant’s denial that he shot
Raymond precludes such an instruction. See id.
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Appellant admits “the shooter” only began firing the gun into Raymond’s
car as Raymond drove it in reverse in order to escape. Appellant’s Brief, at
17. As Appellant concedes, Raymond was attempting to escape at the time he
was shot. Appellant has thus wholly failed to demonstrate any circumstances
which would justify a voluntary manslaughter jury instruction. Based on the
foregoing, we find that Appellant was not entitled to a voluntary manslaughter
jury instruction.
In his final issue for our review, Appellant contends the trial court erred
in admitting autopsy photographs of Raymond at trial. We find this claim
waived.
“The viewing of photographic evidence in a murder case is, by its nature,
a gruesome task. But photographs of a corpse are not inadmissible per se.”
Commonwealth v. Hetzel, 822 A.2d 747, 765 (Pa. Super. 2003) (citation
omitted).
In determining whether photographs [of a decedent] are
admissible, we employ a two-step analysis. First, we consider
whether the photograph is inflammatory. If it is, we then consider
whether the evidentiary value of the photograph outweighs the
likelihood that the photograph will inflame the minds and passions
of the jury. Even gruesome or potentially inflammatory
photographs are admissible when the photographs are of such
essential evidentiary value that their need clearly outweighs the
likelihood of inflaming the minds and passions of the jurors.
Commonwealth v. Solano, 906 A.2d 1180, 1191-1192 (Pa. 2006) (citations
omitted).
The autopsy photographs are not in the certified record. It is an
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appellant’s responsibility to ensure that the certified record contains all the
items necessary to review his claims. See, e.g., Commonwealth v. Tucker,
143 A.3d 955, 963 (Pa. Super. 2016); Commonwealth v. B.D.G., 959 A.2d
362, 372 (Pa. Super. 2008). “When a claim is dependent on materials not
provided in the certified record, that claim is considered waived.”
Commonwealth v. Petroll, 696 A.2d 817, 836 (Pa. Super. 1997) (citation
omitted).
Without the photographs, we cannot conduct a review of Appellant’s
issue presented on appeal. See, e.g., Commonwealth v. Powell, 956 A.2d
406, 423 (Pa. 2008) (finding claim that an autopsy photograph was unduly
prejudicial waived “[b]ecause the record does not contain the photograph
appellant refers to, we cannot assess his description and claim”); Petroll, 696
A.2d at 836 (finding claim of improperly admitted photographs waived where
they were not in the certified record). Accordingly, we find Appellant’s final
claim waived for our review.
Thus, we reverse Appellant’s second conspiracy to commit robbery
conviction, but decline to remand for resentencing as it does not alter the
overall sentencing scheme. We affirm Appellant’s judgment of sentence in all
other respects.
Judgment of sentence reversed in part and affirmed in part. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2017
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